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Soto v. Scaringelli

March 21, 2007

MARIA SOTO, PLAINTIFF-RESPONDENT,
v.
LISA SCARINGELLI AND JAMES SCARINGELLI, DEFENDANTS-APPELLANTS.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 384 N.J. Super. 431 (2006).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In this appeal, the Court is asked to define, in the context of a plaintiff's appearance, what level of disfigurement or scarring is "significant," that is, what degree of disfigurement or scarring is required to overcome the bar to recovery for non-economic loss set forth in the limitation on lawsuit option provisions of the Automobile Insurance Cost Reduction Act of 1998 (AICRA), N.J.S.A. 39:6A-8a.

On January 6, 2002, Maria Soto was walking through a shopping center parking lot when she was struck by an automobile owned by James Scaringelli and driven by his wife, Lisa Scaringelli. Soto complained of injuries to her left shoulder, which were treated without surgical intervention. Fourteen months later, open rotator cuff surgery was performed. As a result of that surgery, Soto had three scars. Two of them, resulting from the arthroscopy, are admittedly minor and, therefore, are not at issue. Soto claims, however, that the scar from the incision required for the open rotator cuff repair constituted "significant scarring" sufficient to vault the statutory threshold. In addition, Soto claims that the metal plate and screw palpable through the skin, implanted in her shoulder as part of the surgical repair constituted "significant disfigurement," and independently were sufficient to vault the statutory threshold.

Soto sued the Scaringellis, who then moved for summary judgment following completion of discovery. In part, the Scaringellis alleged that the observable results from Soto's surgery were insufficient to vault the "significant disfigurement or significant scarring" threshold. Addressing the standard to be applied, the motion court noted that it had "to make a determination as to whether or not any reasonable find[er] of fact, in a group of six people in this courtroom, would . . . find, that this is a scar of some significance, that it qualifies[.]" Applying that standard, the motion court concluded that the scar was not "readily discernible" or "readily apparent" and that "unless somebody were looking with great particularity at that shoulder, under a good strong light, that scar is not visible . . ." Furthermore, the motion court did not find "that the hardware in her shoulder is of any consequence in this evaluation[,]" concluding that "I do not see any deformity, any bulges, and so forth, in her shoulder." Based on those conclusions, the motion court granted the Scaringellis' motion for summary judgment.

Soto appealed, and the Appellate Division reversed and remanded the case for trial. The panel was uncertain whether the motion court had applied the proper summary judgment standard and, exercising its original jurisdiction, further determined that "the scarring/disfigurement is not so insubstantial that no rational fact-finder could determine that it does not impair plaintiff's appearance, rendering her unsightly, misshapen, or imperfect."

The Supreme Court granted the Scaringellis' petition for certification.

HELD: No rational fact-finder would find that plaintiff's scar or surgically implanted plate and screw constituted disfigurement or scarring sufficiently "significant" to justify vaulting the limitation on lawsuit threshold of New Jersey's Automobile Insurance Cost Reduction Act of 1998 (AICRA), thus overriding AICRA's exemption from liability.

1. In this case of first impression, the Court's task is to ascertain the Legislature's intent when it defined "significant disfigurement or significant scarring" as a category that vaults AICRA's verbal threshold and permits recovery. The Court first addresses the standard to be applied to Soto's claim that she is entitled to suit under AICRA either because the scar on her left shoulder constitutes "significant scarring," or because the metal plate and screw surgically implanted in her shoulder constitute "significant disfigurement." The Court then addresses the Scaringellis' contention in respect of the quantum of proofs adduced in the record in respect of Soto's claims. In doing so, the Court applies that standard to the record on appeal. (Pp. 10-12)

2. Among the categories permitted to vault AICRA's limitation on lawsuit threshold are those cases, similar to this, involving a claim of "significant disfigurement or significant scarring." N.J.S.A. 39:6A-8a. Although susceptible to a plain language interpretation, the terms "significant disfigurement or significant scarring" can be construed to have "a special or accepted meaning in the law[.]" Save for a reference in a colloquy between legislators to the effect that AICRA was patterned after "comparable Florida law," nothing in the statute's legislative history or jurisprudence breathes life into that phrase. Guidance can be gleaned from pre-AICRA cases and seemingly parallel workers' compensation settings, as well as actions brought under the Tort Claims Act provisions that limit recovery against a public entity for, among other things, "permanent disfigurement." The Court sees no difference between the standard to be applied for overcoming the verbal threshold in no-fault automobile cases under AICRA, and the now well-known standard applied in pre-AICRA "permanent significant disfigurement" cases, pre-AICRA "significant disfigurement" cases, or "permanent disfigurement" cases under the Tort Claims Act. Therefore, the Court holds that, to satisfy the limitation on lawsuit threshold of AICRA in respect of either "significant disfigurement or significant scarring," a plaintiff bears the burden of demonstrating that, on an objective basis, the disfigurement or scarring substantially "impair[s] or injure[s] the beauty, symmetry, or appearance of a person, rendering the bearer unsightly, misshapen or imperfect, deforming her in some manner." The Court further holds that, in making that objective determination, a number of factors are relevant, "including appearance, coloration, existence and size of the scar, as well as shape, characteristics of the surrounding skin, remnants of the healing process, and any other cosmetically important matters.' (Pp. 12-19)

3. In order to resist a claim that a plaintiff's injuries do not vault AICRA's "significant disfigurement or significant scarring" limitation on lawsuit threshold, a plaintiff, at a bare minimum, must (1) present the plaintiff's disfigurement or scarring for direct observation by the trial court; (2) ensure that the record contains the trial court's description of the disfigurement or scarring; and (3) create and preserve for meaningful appellate review an accurate photographic record of the plaintiff's claimed disfigurement or scarring. In this case, however, the Appellate Division did not remand the matter for the development of the record. Instead, the panel opted to exercise its original jurisdiction in reversing the trial court. The Supreme Court disagrees. Requiring that the record on appeal contain both the motion court's description of its observations as well as preserved visual evidence of the scar or deformity claimed by a plaintiff to qualify as "significant disfigurement or significant scarring" allows for a more meaningful appellate review than what is provided by a description alone. The Court concludes that no rational fact-finder would find that plaintiff's scar or surgically implanted plate and screw constituted disfigurement or scarring sufficiently "significant" to justify vaulting AICRA's limitation on lawsuit threshold and, thus overriding AICRA's exemption from liability. The Court concludes that no rational fact-finder could find that plaintiff's scar or surgically implanted plate and screw rendered plaintiff's appearance unattractive, objectionable, or as the subject of pity or scorn, or that they, individually or collectively, substantially detract from plaintiff's appearance or impair or injure plaintiff's beauty, symmetry, or appearance so as to render her unsightly, misshapen, or imperfect. In those circumstances, only one legal conclusion is statutorily mandated: defendants are "exempted from tort liability for non-economic loss to [plaintiff.]" (Pp. 19-24)

The judgment of the Appellate Division is REVERSED, and the judgment of the Law Division granting summary judgment in favor of defendants is REINSTATED.

CHIEF JUSTICE ZAZZALI and JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, and HOENS join in JUSTICE RIVERA-SOTO's opinion.

The opinion of the court was delivered by: Justice Rivera-soto

Argued January 3, 2007

New Jersey's compulsory automobile insurance statutory scheme distinguishes between those who seek recovery for economic loss -- "uncompensated loss of income or property, or other uncompensated expenses, including, but not limited to, medical expenses[,]" N.J.S.A. 39:6A-2k -- and those who seek recovery for nonecomonic loss -- that is, loss for "pain, suffering and inconvenience[,]" N.J.S.A. 39:6A-2i. The non-economic loss category of cases is further defined. If the verbal threshold*fn1 or limitation on lawsuit option applies, an injured person may not maintain a lawsuit for nonecomonic damages "unless that person has sustained a bodily injury which results in death; dismemberment; significant disfigurement or significant scarring; displaced fractures; loss of a fetus; or a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement." N.J.S.A. 39:6A-8a. If, however, the verbal threshold or limitation on lawsuit option does not apply, "every owner, registrant, operator, or occupant of an automobile . . . and every person or organization legally responsible for his acts or omissions, shall be liable for non-economic loss to a person . . . as a result of bodily injury, arising out of the ownership, operation, maintenance or use of such automobile in this State." N.J.S.A. 39:6A-8b.

In this appeal, we are called on to define, in the context of a plaintiff's appearance, what level of disfigurement or scarring is "significant," that is, what degree of disfigurement or scarring is required to overcome the bar to recovery for non-economic loss set forth in the limitation on lawsuit option provisions of the Automobile Insurance Cost Reduction Act of 1998 (AICRA), N.J.S.A. 39:6A-8a. On summary judgment, the trial court ruled that the claimed injuries were insufficient to constitute "significant disfigurement or significant scarring." The Appellate Division, exercising its original jurisdiction and relying on Gilhooley v. County of Union, 164 N.J. 533, 546 (2000), reversed, concluding that "the scarring/disfigurement is not so insubstantial that no rational fact-finder could determine that it does not impair plaintiff's appearance, rendering her unsightly, misshapen, or imperfect." Soto v. Scaringelli, 384 N.J. Super. 431, 438 (App. Div. 2006) (citation, quotation marks and editing marks omitted).

We disagree. We earlier explained that "an automobile accident victim who is subject to the threshold and sues for non-economic damages has to satisfy only one of AICRA's six threshold categories[.]" DiProspero v. Penn, supra, 183 N.J. at 481-82. In respect of the "significant disfigurement or significant scarring" statutory threshold applicable to a plaintiff's appearance, we hold that the threshold is satisfied only if an objectively reasonable person would regard the scar or disfigurement as substantially detracting from the automobile accident victim's appearance, or so impairing or injuring the beauty, symmetry, or appearance of a person as to render him or her unsightly, misshapen, or imperfect. Applying that standard, we also hold that the trial court properly concluded that injuries claimed did not satisfy the "significant disfigurement or significant scarring" statutory threshold. Finally, we hold that, in the future and as a condition precedent to meaningful appellate review, a plaintiff who seeks to resist a defense based on that threshold bears the burden of establishing a proper record. That record must include the trial court's direct observations and description of the disfigurement or scarring alleged to be significant, together with an accurate photographic record thereof.

I.

Because this appeal arises on defendants' motion for summary judgment, we view the facts in the light most favorable to plaintiff. DiProspero v. Penn, 183 N.J. 477, 482 (2005) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). The relevant facts are readily summarized.

On January 6, 2002, plaintiff Maria Soto was walking through a shopping center parking lot when she was struck by an automobile owned by defendant James Scaringelli and driven by his wife, defendant Lisa Scaringelli. Plaintiff complained of injuries to her left shoulder, which were treated without surgical intervention. Fourteen months later, when plaintiff's left shoulder still had not healed, surgery was required. First, plaintiff was subjected to a diagnostic arthroscopy.*fn2 Based on the results of the arthroscopy, the surgeon operated on plaintiff's left shoulder, performing an open rotator cuff repair, with a decompression of the area beneath the outer extremity of the shoulder blade and a resection of the clavicle. In addition, a catheter was inserted for the delivery of pain medications.

As a result of those surgical procedures, plaintiff had three scars. Two of them, resulting from the arthroscopy, are admittedly minor and, therefore, are not at issue. Plaintiff claims, however, that the scar from the incision required for the open rotator cuff repair constituted "significant scarring" sufficient to vault the statutory threshold. In addition, plaintiff claims that the metal plate and screw implanted in her shoulder as part of the surgical repair constituted "significant disfigurement," and independently were sufficient to vault the statutory threshold. In support, plaintiff submitted a treating physician's certificate*fn3 prepared by Aaron L. Shapiro, M.D., explaining that plaintiff's "physical exam at this time reveals a 7 cm [or a 23/4 inch] scar of the left shoulder" and "a palpable metal object underneath the scar." Based on his examination, Dr. Shapiro was of the "opinion, within a reasonable degree of ...


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